(Editor’s Note: What follows is the adaption of the written commentary of John F. Banzhaf III, B.S.E.E., J.D., Sc.D., Professor of Public Interest Law at George Washington University (GWU) Law School in the wake of revelations that the Department of Education [DoE] is investigating GWU for possible violations of federal law (Title IX) over its handling of sexual violence and harassment complaints.)
This investigation could easily have been avoided – and might still be avoided.
Individual universities are often ill equipped to conduct their own investigation of complaints of sexual assaults, and to devise and implement procedures for fairly investigating and adjudicating such matters. As a result, they have frequently been sued successfully by both complainants and respondents.
More seriously, any college which tries to investigate and adjudicate complaints about its own students faces an unavoidable conflict of interest.
If the respondent isn’t found guilty and severely punished, critics complain (and often sue) arguing that the institution is trying to protect its own public reputation, keep a star athlete on its team, protect the son of a major donor, etc.
On the other hand, if it does expel someone for alleged date rape, it is frequently criticized (or sued) for allegedly overreacting to avoid the filing of a federal complaint or even a dreaded federal investigation, and to appease increasingly effective activists’ groups on campus concerned about date rape.
All of this – as well as problems that individual colleges have in employing full-time personnel with sufficient experience and background to investigate sexual felonies, as well as their much-criticized adjudication panels and policies – could by avoided if individual universities simply stopped doing their own investigation and adjudication of these issues, and instead turned them over to a completely neutral body.
GWU should have joined with several dozen other colleges in the greater D.C. area to form a consortium to deal fairly and impartially with all such complaints.
Funded in an equitable manner by both large and small institutions, the consortium would employ a sufficient number of persons trained and experienced to investigate delicate sex crimes such as rape; something most colleges cannot now afford to do.
Since they would be employed by the consortium and not by any individual college, such investigations would be both very professional, and clearly independent and free from any bias.
Similarly, the adjudications would not be conducted by panels of faculty, staff, and even students at the affected university with all the unavoidable conflicts of interest, but rather by consortium panels composed of independent retired judges, law professors, lawyers, etc., well versed in conducting such proceedings, and in assuring that the rules are assiduously followed, and that both sides are treated fairly.
Were GWU to now offer to help establish such a body to investigate and adjudicate complaints from member colleges in the D.C. area, DoE might jump at this opportunity to remedy many of the problems with a system now costing hundreds of millions, and which makes no one happy.
